Tuesday, July 14, 2015

But there are times I wish Google would change its mantra to
“Don’t Be Inconsistent.” And then follow the injunction.

Here’s a good example.

Google is now arguing that the International Trade
Commission does not possess authority to prevent entry into the United States
of digital content that infringes upon intellectual property rights protected
by law. Google took this position in a case
before the ITC in which the six-member Commission, with only one dissenting
vote, disagreed with its assertion that the agency’s authority to prevent
infringing imports should be limited to physical goods.

Section 337(a)(1)(B) of the Tariff Act of 1930 grants the
ITC the authority to prevent the importation for sale into the U.S. of
“articles” that infringe valid copyrights and patents. Contrary to Google’s
position, the Commission held that digital files constitute “articles” within
the meaning of the statute. The case is now on appeal before the Court of
Appeals for the Federal Circuit with oral argument scheduled for August 4, 2015
– and with Google still maintaining that the “articles” over which the ITC has jurisdiction
do not include digital data.

The ITC case involves the importation of digital scans of dental
appliances claimed to infringe patents. Suffice it to say that it is
unnecessary here to bite off any more of the facts of the case than you or I
can comfortably chew. Indeed, my purpose is not to sink my teeth into the
arguments about the validity of the particular dental patents but rather to
make a larger, more fundamental point concerning the ITC’s jurisdiction – and
what Google previously has said about it.

Back in 2011-2012, when the Stop Online Piracy Act (SOPA)
was being debated, Google and its allies opposing the bill intended to combat
online piracy, suggested online infringement should be treated as an
international trade issue. In a FAQ sheet opposing
SOPA and supporting the alternative OPEN Act, here is what Google and its
allies had to say then:

“For well over 80 years, the
independent International Trade Commission (ITC) has been the venue by which
U.S. rightsholders have obtained relief from unfair imports, such as those that
violate intellectual property rights. Under Section 337 of the Tariff Act of
1930 – which governs how the ITC investigates rightsholders’ request for relief
– the agency already employs a transparent process that gives parties to the
investigation, and third party interests, a chance to be heard. The ITC’s
process and work is highly regarded as independent and free from political
influence and the department already has a well-recognized expertise in
intellectual property and trade law that could be expanded to the import of
digital goods.

The Commission already employs important
safeguards to ensure that rightsholders do not abuse their right to request a
Commission investigation and the Commission may self-initiate investigations.
Keeping them in charge of determining whether unfair imports – like those that
violate intellectual property rights – would ensure consistent enforcement of
Intellectual Property rights and trade law.”

Mind you, this followed a heading asking: “Why is the
International Trade Commission the best agency to handle cases of copyright and
trademark infringement?”

And this too came from Google and its allies in supporting
the OPEN Act: “This approach targets foreign rogue sites without inflicting
collateral damage on legitimate, law-abiding U.S. Internet companies by
bringing well-established international trade remedies to bear on this problem.”

In light of these statements touting the efficacy of
international trade remedies, and the fact that SOPA and the OPEN Act obviously
were all about protecting digital data, not physical goods, it’s hard to
believe that Google is now arguing that the imported “articles” over which the
ITC possesses authority do not
include digital content.

Perhaps it should be enough to suggest that consistency is a
virtue and leave it at that.

But it also should be emphasized that unless the ITC’s
interpretation of the meaning of “articles” in the Tariff Act is clearly wrong,
it makes sense for the statute to be construed to grant the agency authority to
prevent importation of infringing digital data as well as infringing physical
goods. After all, digital content comprises an increasingly large portion of
international trade. Indeed, the Progressive Policy Institute has just released
a new report titled “Uncovering
the Hidden Value of Digital Trade: Towards a 21st Century Agenda of
Transatlantic Prosperity.” Not surprisingly, the report’s summary concludes:
“More and more, global trade has come to rely on a vital commodity: data.” In
the digital age, reading the protection of digital data out of the ambit of the
ITC’s authority would significantly shrink its ability to prevent the
importation of pirated copyrighted works and patents.

I’m not accusing Google of being evil, of course. Just of
being inconsistent.

I’d rather not have to suggest that Google change its motto
to “Don’t Be Inconsistent.”